Yes, a domestic violence arrest can significantly impact child custody and divorce proceedings, as courts prioritize child safety and may limit custody, visitation, or decision-making rights even before a criminal conviction.
If you’re going through a divorce and have been arrested on a DV charge, you can consult with a Burbank domestic violence defense lawyer to protect your rights and find out how a criminal defense team can help with your divorce or custody case.
To learn more about the answer to, “Does a domestic violence arrest affect your child custody or divorce case?”, keep on reading.
Domestic Violence Presumptions
California has become one of several states to enact statutes that support domestic violence presumptions. The “presumption” is that an individual with a history of domestic violence (DV) may, now or in the future, engage in behavior that may be harmful to a child or family members.
Depending on the jurisdiction, a domestic violence presumption could result in the parent losing child custody or having little to no visitation with them if the other parent can prove a history of child abuse or domestic abuse.
However, a Burbank criminal defense lawyer may be able to help you contest these presumptions by demonstrating that you have taken steps to address the behaviors and are no longer a threat to the child.
For a free legal consultation, call (310) 896-2723
Contesting DV Presumptions
In the state of California, domestic violence presumptions can be contested by the accused individual. This means that if a person is accused of domestic violence and there is a presumption that they are indeed guilty, they have the right to provide evidence to challenge and rebut this presumption.
California law allows the accused individual to present evidence showing that they are actively working to change their behavior and no longer pose a threat to the safety or well-being of their family members.
What Evidence is Needed to Contest Domestic or Family Violence?
In order to contest domestic violence presumptions in California, acceptable evidence may include showing proof of the following:
- Attending counseling or therapy sessions related to anger management or domestic violence prevention
- Completing educational programs on healthy relationships and communication skills
- Participating in support groups for individuals who have committed acts of domestic violence
- Engaging in other activities aimed at addressing and changing patterns of abusive behavior
By presenting this evidence, individuals accused of domestic violence have the opportunity to demonstrate their commitment to improving themselves and ensuring the safety of those around them.
How does the State of California Define Domestic Violence?
Domestic violence is often associated with physical abuse, but this is not always the case. People can be victimized in many different ways, including:
- Bodily injury
- Sexual assault
- Threats of bodily injury
- Harassment (including stalking, threats, and unwanted phone calls)
- Financial abuse (one spouse controls all of the finances)
Such abuse is considered “domestic” when it is committed against any of the following people:
- Current or former spouses
- People who live together or who used to live together
- Family members, related either by blood or marriage
- Couples who have children together
- Children
- Individuals who are dating or engaged
If Violence is Not Directed Toward the Child, Are Courts Still Reluctant to Award Custody?
If a child witnesses one parent abusing the other, but that parent has never hit or been otherwise directly violent toward the child, courts will still exercise extreme caution in a custody or visitation proceeding.
This is not only an abundance of caution revolving around speculation that the violence may later be redirected at the child. There is also a large concern from the courts that children who are in the presence of abuse will grow up to become abusers themselves.
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How Does Domestic Violence Affect Custody?
If domestic violence is proven, the abusive parent is likely to face a loss of custody, along with greatly reduced custody and visitation rights. Some of the actions the court may take include:
- Ordering supervised visitation
- Revoking portions of the accused parent’s current visitation privileges
- Ordering the parent to participate in parenting or anger management classes
- Ordering the parent to participate in domestic violence counseling
- The revocation of the accused parent’s custody and visitation rights altogether (this can be temporary or permanent)
- Issuing a restraining order against the accused parent
- Complete termination of parental rights
Termination of Parental Rights
The complete termination of parental rights is a judgment that is rarely handed down and never done lightly. Termination of parental rights (TPR) means that a parent loses all of their rights to both physical and legal custody of their child.
TPR judgments occur when a parent has become unfit to care for a child, abandoned or neglected their child, or caused their child serious, physical, mental, or emotional harm through abuse.
A TPR is a permanent order. That means that once a parent has their parental rights terminated, they can never be reinstated.
Other Ways that Custody Can Be Affected
Suppose a father discovers that his ex-spouse’s new boyfriend is either abusing his children or his ex-spouse in front of the children. The father is within his right to file a petition with the court for full physical custody of the children.
He can argue that the mother is incapable of protecting the children and that they would, therefore, be safer if they lived with him.
Factors Considered by the Court
There are many factors that the court considers when considering an accusation of domestic violence in a child custody case. Some of the things that a judge will review before making a decision include:
- Whether the child was the direct victim of any of the alleged instances of abuse by the accused
- Whether the child was a witness to any of the alleged instances of physical abuse
- The severity and frequency of the alleged instances of domestic violence
- Whether the accused continues to pose a threat to the child or the other parent
- If there is a pending criminal case against the accused
- Police reports documenting incidents of alleged abuse by the accused
- Any physical evidence that backs up the allegations, such as photographs of the sustained injuries
Can False Accusations of Domestic Violence Be Ignored?
Domestic violence is not taken lightly by the courts, which is why it is both upsetting and frustrating for a parent to be subjected to false allegations simply because the other parent hopes to gain the advantage in a legal proceeding.
However, even if the allegations are completely untrue, it is important that they be contested.
If ignored, the courts will be forced to accept the allegations as true and will impose the appropriate presumptions. You may wish to consult with an experienced family law attorney, maybe even one with a background in criminal law, who can advise you on how best to proceed.
What to Do If You’ve Been Accused of Being an Abusive Parent or Spouse
Being accused of family violence can threaten your freedom, reputation, and relationship with your children, often triggering criminal charges, protective orders, and serious consequences in child custody or divorce cases, so acting quickly and carefully is essential.
- Take the accusations seriously: Even false or exaggerated claims of domestic violence, physical abuse, or emotional abuse can lead to arrest, restraining orders, and limits on custody or visitation.
- Follow all court orders immediately: If a protection order or no-contact order is issued, comply fully, as violations can result in additional charges and damage your custody case.
- Avoid discussing the situation publicly: Do not contact the accuser or discuss the allegations with friends, family, or on social media, as statements can be used against you.
- Document relevant evidence: Preserve text messages, emails, medical records, photos, and witness information that may help refute the allegations.
- Do not speak to police without legal advice: Politely decline to give statements until you have consulted with a criminal defense attorney.
- Hire an attorney as soon as possible: An experienced criminal defense attorney can protect your rights and coordinate with a family law attorney to reduce the impact on your custody or divorce case.
- Comply with court-ordered programs: If required to attend anger management or parenting classes, complete them promptly to demonstrate responsibility and protect your parental rights.
How Does an Individual File for a Domestic Violence Presumption?
Typically, the accusing parent will seek what is called a “temporary restraining order” from the court. Temporary restraining orders do not require as much notice as a regular custody order. As a result, they are often awarded by default.
This is because the accused parent may not have enough advance notice to make arrangements to appear in court to fight the allegations.
Why Do You Need a Criminal Defense Attorney?
When facing domestic violence charges, the consequences can extend far beyond criminal charges, affecting child custody, your divorce case, and your long-term parental rights, which is why having an experienced criminal defense attorney is critical from the very beginning.
Protecting Your Rights in Criminal and Family Courts
A criminal defense attorney works to defend against domestic violence allegations, family violence, or a family violence incident by challenging police reports, text messages, medical records, and other evidence that could lead to a criminal conviction and permanent criminal records, while also minimizing harm in related family courts and family law proceedings.
Minimizing the Impact on Child Custody and Visitation
Allegations of physical abuse, emotional abuse, or child abuse can dramatically affect child custody cases, including physical custody, legal custody, custody and visitation, supervised visitation, and overall custodial rights.
Sound legal advice is essential in any custody case involving claims of an abusive parent.
Defending Against Protective and No-Contact Orders
We can fight or limit restraining orders, protective orders, domestic violence protective orders, protection orders, or no-contact orders, which often restrict contact with family members, interfere with parenting plans, and impact compliance with a custody order or other court order.
Coordinating Criminal Defense With Family Law Strategy
Because domestic violence cases often overlap with family law, a criminal defense attorney can work alongside a family law attorney to protect your interests in a custody case, prevent findings of contempt of court, and reduce negative outcomes tied to a pending divorce case.
Helping You Meet Court Requirements and Preserve Parental Rights
Courts may require anger management, parenting classes, or other conditions following domestic violence charges, and proper legal guidance helps ensure compliance while protecting your parental rights and positioning you for a fair outcome in current and future custody proceedings.
Fighting Domestic Violence Allegations With Simmrin Law Group
So, does a domestic violence arrest affect your child custody or divorce case? The short answer is yes.
If you have been arrested for domestic violence or if you have been falsely accused of being an abusive parent or partner, your custody rights are at risk. You need an experienced domestic violence law legal team that knows how to protect your legal rights.
The domestic violence defense attorneys of Simmrin Law Group have extensive experience protecting those whose custodial rights are at risk due to DV and other criminal charges. Don’t hesitate. Contact us 24/7 to learn more about how we can help, then visit our FAQ page to learn more.
Call or text (310) 896-2723 or complete a Free Case Evaluation form